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CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 40/15

In the matter between:

SPEAKER OF THE NATIONAL ASSEMBLY                                                         First Applicant

CHAIRPERSON OF THE NATIONAL COUNCIL

OF PROVINCES                                                                                                      Second Applicant

and

LAND ACCESS MOVEMENT OF SOUTH AFRICA                                          First Respondent

ASSOCIATION FOR RURAL ADVANCEMENT                                            Second Respondent

NKUZI DEVELOPMENT ASSOCIATION                                                         Third Respondent

MODDERVLEI COMMUNAL PROPERTY

ASSOCIATION                                                                                                      Fourth Respondent

MAKULEKE COMMUNAL PROPERTY ASSOCIATION                                Fifth Respondent

POPELA COMMUNAL PROPERTY ASSOCIATION                                       Sixth Respondent

MATABANE COMMUNITY                                                                             Seventh Respondent

MAPHARI COMMUNITY                                                                                   Eighth Respondent

MLUNGISI AND EZIBELENI DISADVANTAGE

GROUP                                                                                                                     Ninth Respondent

LADY SELBORNE CONCERNED GROUP                                                       Tenth Respondent

PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA                            Eleventh Respondent

MINISTER OF RURAL DEVELOPMENT AND

LAND REFORM                                                                                                  Twelfth Respondent

CHIEF LAND CLAIMS COMMISSIONER                                                Thirteenth Respondent

SPEAKER OF THE EASTERN CAPE

PROVINCIAL LEGISLATURE                                                                    Fourteenth Respondent

SPEAKER OF THE FREE STATE

PROVINCIAL LEGISLATURE                                                                       Fifteenth Respondent

SPEAKER OF THE GAUTENG

PROVINCIAL LEGISLATURE                                                                      Sixteenth Respondent

SPEAKER OF THE KWAZULU-NATAL

PROVINCIAL LEGISLATURE                                                                  Seventeenth Respondent

SPEAKER OF THE LIMPOPO

PROVINCIAL LEGISLATURE                                                                    Eighteenth Respondent

SPEAKER OF THE MPUMALANGA

PROVINCIAL LEGISLATURE                                                                    Nineteenth Respondent

SPEAKER OF THE NORTH WEST

PROVINCIAL LEGISLATURE                                                                     Twentieth Respondent

SPEAKER OF THE NORTHERN CAPE

PROVINCIAL LEGISLATURE                                                                 Twenty-first Respondent

SPEAKER OF THE WESTERN CAPE

PROVINCIAL LEGISLATURE                                                             Twenty-second Respondent

 

Neutral citation: Speaker of the National Assembly and Another v Land Access Movement of South Africa and Others [2019] ZACC 10

Coram: Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ, Theron J

Judgment: Mhlantla J (unanimous)

Heard on: 6 November 2018

Decided on: 19 March 2019

Summary: Application for extension of interdict — interdict in respect of processing of land claims — appropriate remedy — just and equitable order

 

ORDER

 

The following order is made:

1. The application by the applicants for an extension is dismissed.

2. The counter-application by the first to sixth respondents is upheld to the following extent, subject to the Parliament of the Republic of South Africa legislating otherwise:

(a) The Commission on Restitution of Land Rights (Commission) is prohibited from processing in any way any claims lodged in terms of section 10 of the Restitution of Land Rights Act 22 of 1994 (Restitution Act) between 1 July 2014 and 28 July 2016 (interdicted claims) until the earlier of the dates when—

(i) it has settled or referred to the Land Claims Court all claims lodged on or before 31 December 1998 (old claims) by way of a referral of the claim in terms of section 14; or

(ii) the Land Claims Court, upon application by any interested party, grants permission to the Commission to begin processing interdicted claims, whether in respect of the whole or part of the Republic of South Africa and whether in respect of part or all of the process for administering an interdicted claim.

(b) Until the date referred to in paragraph (a), no interdicted claims may be adjudicated upon or considered in any manner whatsoever by the Land Claims Court in any proceedings for the restitution of rights in land in respect of old claims, provided that interdicted claimants may be admitted as interested parties before the Land Claims Court solely to the extent that their participation may contribute to the establishment or rejection of the old claims or in respect of any other issue that the presiding judge may allow to be addressed in the interests of justice.

(c) Notwithstanding the provisions of section 11(5) and 11(5A) of the Restitution Act, no interdicted claimant shall be entitled to any relief having the effect of—

(i) altering or varying—

(a) the relief granted to any claimant in terms of section 35 of the Restitution Act in respect of a finalised old claim;

(b) the terms of an agreement concluded in terms of section 42D of the Restitution Act; or

(c) an award in terms of section 42E(1)(a) or (b) of the Restitution Act,

unless the Land Claims Court in exceptional circumstances orders otherwise; and / or

(ii) awarding to such interdicted claimant land or a right in land that is subject to a pending claim for restoration by an old claimant.

(d) The Chief Land Claims Commissioner must file a report with the Land Claims Court, to be dealt with as the Judge President of that Court may deem fit, at six-monthly intervals from the date of this order, setting out—

(i) the number of outstanding old claims in each of the regions on the basis of which the Commission’s administration is structured;

(ii) the anticipated date of completion in each region of the processing of the old claims, including short-term targets for the number of old claims to be processed;

(iii) the nature of any constraints, whether budgetary or otherwise, faced by the Commission in meeting its anticipated completion date;

(iv) the solutions that have been implemented or are under consideration for addressing the constraints; and

(v) such further matters as the Land Claims Court may direct;

until all old claims have been processed.

(e) The Land Claims Court may make such order or orders as it deems fit to ensure the expeditious and prioritised processing of old claims.

3. The applicants are jointly and severally ordered to pay the costs of the first to sixth respondents, including the costs of two counsel.

 

JUDGMENT

 

MHLANTLA J (Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Petse AJ and Theron J concurring):

 

Introduction

[1] “There can be no freedom, without land.  There can also be no peace until the emotional issue of land is settled.”[1]  Land restitution, albeit with its complications and setbacks,[2] still forms part of an important process.  It aims to right historical wrongs, resolve unjust dispossession and heal the “trauma of deep, dislocating loss of land” that has taken root in our country.[3]  It entails the practical disruption of racialised privilege in respect of land ownership.  But it also incorporates a symbolic function of recognising histories and legacies of injustice that influence the lives of individuals, families and communities.[4]

[2] This Court in LAMOSA 1 has given credit to the importance of the restitution process and linked it to the “restoration of dignity”.[5]  This matter is a sequel to LAMOSA 1.  In LAMOSA 1, this Court prospectively struck down the Restitution of Land Rights Amendment Act[6] (repealed Amendment Act) from the date of the judgment on 28 July 2016.  In paragraph 4 of the Order, this Court interdicted the Commission on Restitution of Land Rights (Commission) from processing any claims lodged between 1 July 2014 and 28 July 2016 pursuant to the repealed Amendment Act (the interdicted claims), pending the enactment of a new Act re-opening the lodgement of land claims.^[7]  Paragraph 7 of the Order provided that, should Parliament not enact an Act within 24 months of the date of judgment in LAMOSA 1, the Chief Land Claims Commissioner (Commissioner) must, and any other interested party to LAMOSA 1 or person with a direct and substantial interest may, apply to this Court within two months of the elapsed period for an appropriate order on the processing of those interdicted claims.

[3] The effect of the Order was that, first, the repealed Amendment Act was declared invalid immediately from 28 July 2016.  Simply put, the repealed Amendment Act was struck down finally and irrevocably.  Second, the Commission was interdicted from processing any interdicted claims.  Third, the interdict would endure until (1) Parliament enacted a new Amendment Act (new Amendment Act) re-opening the period of lodgement of land claims; (2) the processing of all claims lodged before 31 December 1998 (old claims) was finalised before the enactment of a new Amendment Act; or (3) if Parliament were to fail to enact a new Amendment Act within 24 months of the date of the Order, until the Commission, or any other interested party, applied to this Court for an appropriate order on the processing of the interdicted claims.

[4] The applicants, the Speaker of the National Assembly and the Chairperson of the National Council of Provinces (collectively, Parliament), now seek an extension of the period of 24 months mentioned in paragraph 7 of the Order until 29 March 2019, in order to enable Parliament to finalise the process of enacting a new Amendment Act.  The extension will, if granted, extend the interdict in paragraph 4 of the Order and, consequently, paragraph 7 will not be activated until 29 March 2019.  The seventh to tenth respondents (collectively, the Communities) support Parliament’s request for the extension.

[5] The first to sixth respondents (the LAMOSA respondents) oppose the application.  They have brought a counter-application asking this Court to lift the interdict and grant an order, as set out in their counter-application, dealing with the processing of the interdicted claims.

 

Background

[6] In 1994, Parliament passed the Restitution of Land Rights Act^[8] (Restitution Act), being the legislation envisaged by section 25(7) of the Constitution^[9] to address evictions, forced removals and past dispossession of land.  The Restitution Act established a system allowing people and communities who were, as a result of racially discriminatory laws or practices, dispossessed of their land rights to claim either restitution of the land or equitable redress.  The Restitution Act provided that all claims had to be lodged by 31 December 1998.  During the period between the enactment of the Restitution Act and 31 December 1998, about 80 000 claims were lodged.  However, by 2014, over 20 000 of those claims had not yet been finalised.

[7] In 2014, Parliament enacted the repealed Amendment Act.  One of the major changes brought in by the repealed Amendment Act was the re-opening of the restitution process, allowing new claims to be lodged until 30 June 2019.^[10]  However, the procedures followed by the National Council of Provinces (NCOP) and the provincial legislatures in passing the repealed Amendment Act were challenged in LAMOSA 1.

[8] In LAMOSA 1, the LAMOSA respondents filed an application for direct access to this Court for a declaration of constitutional invalidity of the repealed Amendment Act.[11]  The applicants challenged the constitutionality of the repealed Amendment Act on two grounds: first, that the NCOP and the provincial legislatures respectively breached section 72(1)(a) of the Constitution by failing to “facilitate public involvement” in the passing of the Bill that preceded the repealed Amendment Act, and, second, that section 6(1)(g) of the Restitution Act, as inserted by the repealed Amendment Act, was incurably vague.^[12]

[9] The provincial legislatures took issue with the challenge by the applicants in LAMOSA 1 against the participation process conducted by them and the NCOP and, to the contrary, argued that they had fulfilled their constitutional obligations under the impugned sections.  The Minister of Development and Land Reform (Minister) and the President of the Republic of South Africa (President) invoked the legal maxim of qui prior est tempore potior est jure^[13] to argue that section 6(1)(g) conferred substantive priority on current claims.  The Commissioner, on the other hand, contended that developing rules would assist in determining the proper meaning of section 6(1)(g) on the prioritisation of claims.

[10] On 28 July 2016, this Court held that the re-opening of land claims, which the repealed Amendment Act sought to do, is of paramount public importance.  In addition, it held that there must be reasonable public participation in the legislative process.^[14]  The Court concluded that the NCOP’s public participation process was unreasonable and therefore constitutionally invalid.  It also declared the repealed Amendment Act to be invalid, thereby accepting the LAMOSA respondents’ first argument and rendering the need to consider the complaint against section 6(1)(g) irrelevant.  The Order interdicted the Commission from processing any of the interdicted claims, in order to ensure that the old claims were not superseded.  Further, Parliament was directed to facilitate the enactment of a new Amendment Act that would deal with the re-opening of land claims, as envisaged in section 25(7) of the Constitution, within 24 months of the judgment.  In the event that this did not take place, the Court held that it would be empowered to issue an appropriate order regarding the processing of the interdicted claims if an application was so filed.  Further, in the event that all old claims were finalised before Parliament completed the enactment of a new Amendment Act, the Commission could proceed with the interdicted claims.^[15]

[11] Parliament has failed to enact a new Amendment Act within 24 months.  On 30 July 2018, two days after the expiry of the 24-month period referred to in paragraph 7 of the Order, it lodged this application asking this Court to extend the expired period of 24 months by a period of eight months until 29 March 2019.

[12] On 12 September 2018, this Court granted an interim extension pending the outcome of the application and set the matter down for hearing.

[13] The application is opposed by the LAMOSA respondents.  They submit that this Court does not have the power to extend the 24-month period as the Order made on 28 July 2016 was final.  They submit that by failing to provide a legislative solution within 24 months of the Order, Parliament has forgone the opportunity to address the prioritisation issue, and that this matter now stands to be determined finally by this Court.  Further, the LAMOSA respondents have filed a counter application, in which they propose, amongst other things, that old claims should be prioritised over interdicted claims (substantively and procedurally).

 

Issues

[14] The main question to be determined here is whether this Court may grant the extension sought by Parliament and, if so, whether it is just and equitable to do so.  As noted above, if the extension is granted, the interdict in paragraph 4 of the Order will also be extended and, consequently, paragraph 7 of the Order will not be activated.  The counter-application would then fall away.  However, if the application is dismissed, the counter-application will have to be dealt with.  I thus proceed to consider the issue of the extension.

 

Application

Submissions by Parliament and the Communities

[15] Parliament submits that it is already in the advanced stages of its processes of enacting a new Amendment Act, and so it is best to allow it the space to do its job.  In this regard, Parliament has provided an account of what it has done.  It contends that the legislative process will be concluded within the extended period sought and explains that the following steps have been taken since 28 July 2016 to give effect to the Order:

(a) Parliament was in recess when the judgment was handed down and re opened on 20 August 2016.  On 30 August 2016, the Management Committee of the Portfolio Committee on Rural Development and Land Reform (Portfolio Committee) invited the Legal Resources Centre to share its views on the implications of LAMOSA 1 on the re-opening of claims.

(b) On 31 August 2016, the Portfolio Committee convened and was briefed by Parliament’s internal legal advisor.  The legal advisor stressed the importance of facilitating maximum public participation in the legislation-making process going forward.

(c) On 7 September 2016, the Portfolio Committee again convened to discuss the financial implications for the state of enacting a new Amendment Act.

(d) During October and November 2016, the Portfolio Committee was unable to attend to any issues relating to legislation due to its pre scheduled oversight business.  Parliament was then in recess from December 2016 until February 2017.

(e) The draft Amendment Bill was tabled on 13 March 2017 as a Private Member’s Bill.  The National Assembly Tabling Office referred the draft Amendment Bill to Parliament’s internal legal services for consideration.

(f) On 23 March 2017, Parliament’s internal legal services stated that the draft Amendment Bill was non-compliant and needed to be amended.

(g) On 7 April 2017, an explanatory summary that invited public comments was published in the Government Gazette, as well as in local newspapers.  The deadline for comments was extended to 31 May 2017.

(h) On 18 and 19 April 2017, a meeting was held between Parliamentary legal advisors, the Commissioner and the Portfolio Committee’s legal advisors.

(i) The draft Amendment Bill was finalised on 5 May 2017 and was certified by the Parliamentary legal advisor on the same date.

(j) On 10 May 2017, the Portfolio Committee was briefed on the draft Amendment Bill.

(k) Between the periods of 19 to 30 June 2017 and 3 to 31 July 2017, Members of Parliament conducted oversight visits and constituency work respectively.

(l) On 7 August 2017, various supporting documents were submitted to the Bills Office to facilitate the introduction of the draft Amendment Bill, as well as its editing.

(m) The editing of the draft Amendment Bill was finalised on 16 August 2017, and it was introduced in the National Assembly on the same day.

(n) On 25 August 2017, the draft Amendment Bill was referred to the Joint Tagging Mechanism for tagging.

(o) On 5 October 2017, the Portfolio Committee convened its first briefing meeting and resolved to conduct public hearings in all the provinces.

(p) During October and November 2017, the Portfolio Committee was unable to attend to any issues relating to legislation due to its pre scheduled oversight business.  Parliament was then in recess from December 2017 until February 2018.

(q) On 28 February 2018, the Portfolio Committee concluded its work on the Communal Property Associations Amendment Bill.

(r) Various public advertisements were placed during the period of 30 April 2018 to 4 May 2018, and public hearings in all nine provinces took place between 18 June 2018 and 3 July 2018.

(s) The Portfolio Committee has been in the process of considering the submissions and has also called for further submissions.

[16] Parliament submits that the failure to enact a new Amendment Act was not due to its remissness but, rather, the inadequacy of the time afforded to it.  It contends that the legislative process is at an advanced stage and the actual extension sought is short and finite.  Lastly, it contends that the extension will not change the status quo, in that the interdict will remain intact and the Commission will continue with the assessment of the old claims.  Parliament undertakes to submit progress reports monthly in the event that the extension is granted.

[17] Parliament submits that this Court has the power in terms of section 172(1)(b) of the Constitution to make a just and equitable order, which in this instance would be the granting of the extension.  Parliament accepts that the factors set out in Teddy Bear Clinic must be met for a just and equitable order to be issued in terms of section 172(1) and contends that such factors have been met in this instance.[16]

[18] The Communities support the relief sought by Parliament.  They submit that it is in the interests of justice that the extension be granted, and that this Court has the power to grant this relief.^[17]  If the extension is granted, they argue that there will be no prejudice to any of the parties who have already submitted interdicted claims or who wish to submit claims in the future.  If Parliament does not enact a new Amendment Act by its proposed deadline of 29 March 2019, the Communities ask that this Court lift the interdict and allow the Commissioner to process the interdicted claims concurrently with the old claims.[18]

 

Submissions by the LAMOSA respondents

[19] The LAMOSA respondents oppose the application.  They submit that, in line with the principle of finality of judgments, the Order was final, and this Court is functus officio and no longer has the power to grant the relief sought by Parliament.  Furthermore, the LAMOSA respondents submit that Parliament filed the application three days after the expiry of the 24-month period in which it was required to act.  They equate Parliament’s request for an extension to a request for an extension of the suspension of a declaration of invalidity that has expired.  They submit that because the application was filed three days after the expiry of the 24-month period, it is beyond this Court’s powers to extend a period that has expired.  Accordingly, they contend that Parliament is absolutely barred from seeking a variation of the Order, and that paragraph 7 of the Order is now in effect.

[20] The LAMOSA respondents contend that even if there is no absolute bar arising from the 24-month period having expired and the Court does have a discretionary power to vary such an order, this power may only be exercised in exceptional circumstances.  They submit that Parliament has not shown that any exceptional circumstances exist to warrant the exercise of that discretion.  Further, they argue that Parliament has failed to meet two of the criteria set out in Teddy Bear Clinic, as it has not provided an adequate explanation for the delay and it is unlikely that it will correct the defect in the proposed time.

[21] The LAMOSA respondents submit that since Parliament has failed to enact a new Amendment Act within the period stipulated, the responsibility to determine the fate of the interdicted claims now shifts from Parliament to this Court.

 

Characterisation of this application

[22] It is correct that the Order did not suspend the declaration of invalidity of the interdicted claims.  Paragraph 3 of the Order explicitly stated that the declaration of invalidity would take effect from the date of judgment.[19]  However, paragraph 4 suspended the processing of the interdicted claims until: (1) Parliament enacted a new Amendment Act re-opening the period of lodgement of land claims envisaged in section 25(7) of the Constitution; (2) pursuant to paragraph 6 of the Order, the old claims were finalised before the enactment of a new Amendment Act; or (3) in the event that Parliament failed to enact a new Amendment Act within 24 months of LAMOSA 1 (as it has done), the Commissioner or an interested party approached this Court for an appropriate order on the processing of the interdicted claims, as per paragraph 7 of the Order.

[23] Since Parliament has failed to act within the 24-month period, what is at issue is the Court’s invitation in LAMOSA 1 to interested parties to seek an appropriate order on the processing of interdicted claims.  Now the only question is what constitutes a just order in relation to those interdicted claims that had been kept in abeyance?  Before determining this question, it is apposite at this stage to deal with the submissions on behalf of the LAMOSA respondents that this Court is functus officio and no longer has the power to grant the relief sought by Parliament.  I proceed to consider this question.

 

Is this Court functus officio?

[24] The LAMOSA respondents submit that the Order is final, and that this Court is functus officio and no longer has the power to grant the relief that Parliament seeks.  I do not agree.  The Supreme Court of Appeal in Firestone articulated the principle of functus officio as follows:

“The general principle, now well established in our law, is that, once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it.  The reason is that it thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.”[20]

[25] The Supreme Court of Appeal went on to acknowledge that it is assumed that courts do have the discretion to vary their orders, albeit that this discretion must be exercised sparingly.[21]  This principle has been confirmed by this Court.[22]

[26] Further, the Order contemplated that a further order may be made by this Court at a later stage, in that it envisaged an appropriate order on the processing of the interdicted claims.  It is similar to the order in Zondi 1, which reserved the right for interested persons or organisations to apply to this Court for a further suspension of the declaration of invalidity of the legislation in question and / or any other appropriate further relief during the specified period of time.[23]  In the sequel to that decision, Zondi 2, the Court stated:

“It is not uncommon for a court to make an order and reserve to itself the power to vary the order made.  In the past this Court has reserved its authority to reconsider orders for costs or vary the period of suspension of a declaration of invalidity or made further appropriate orders.  Thus in Steyn, the Court allowed the Minister of Justice and Constitutional Development to apply to it for an order varying the terms stipulated in the order or extending the period of suspension provided in the order.  Such orders expressly contemplate that the order made may be varied if the circumstances warrant it.  By their very nature such orders are therefore not final.  Neither the principle of finality nor the doctrine of functus officio arise in relation to such orders.  Those who are bound by these orders know in advance that the order is not final.

Thus where a court, in its order, adds a paragraph similar to paragraph (g) [of the original order in that instance], the court is, in effect, making it plain that the order it has made is not to be understood as final.  And an order of this kind does not preclude the court from reconsidering the matter in relation to which it has reserved the authority to reconsider.  In paragraph (g) this Court expressly reserved to itself the power to vary and extend further the period of suspension of the declaration of invalidity.  It follows therefore that paragraph (e)(2) of the original order of this Court is not final and the period of suspension contemplated therein may be varied and extended if circumstances so warrant.”[24]  (Footnotes omitted.)

[27] Accordingly, given that in this instance the Order has reserved this Court’s power to make further appropriate orders, the principle in Zondi 2 applies.  In this regard, Parliament is also an interested party, as it seeks an extended opportunity to enact the legislation that the Order envisaged.

 

Is this an application for an extension of the suspended order?

[28] The LAMOSA respondents contend that, although there was no suspension of the declaration of invalidity, the act of interdicting the processing of the interdicted claims until either the enactment of a new Amendment Act or the final processing of old claims operated like a suspension of a declaration of invalidity, in that the processing of the interdicted claims was suspended.  Further, although paragraph 7 of the Order did not envisage an extension of the 24-month period and set out what is to happen if Parliament fails to enact the legislation within the 24-month period, Parliament’s application is similar to a request for an extension of a suspension of a declaration of invalidity, in that it is requesting to extend the operation of the interdict against the processing of the interdicted claims until 29 March 2019.

[29] This Court has wide discretionary powers (as encapsulated in section 172(1)(b) of the Constitution) to make any order that is just and equitable.  Indeed, it is under this provision that we consider this application.  Given that this application is analogous to an application for an extension of a suspension of a declaration of invalidity, it is pursuant to the powers granted to us under section 172(1)(b) that we can consider the principles related to extension applications to assist us in determining a just and equitable remedy.  Therefore, it is necessary to assess whether a case for an extension has been made.  It is here that we look to this Court’s jurisprudence on the extension of a suspension of a declaration of invalidity to assist us.

[30] Before doing this, however, it must be noted that, regardless of the remedy provided by this Court, nothing will preclude Parliament from legislating afresh in relation to the processing of the interdicted claims.

 

Applicable legal principles

[31] The relevant principles relating to whether this Court should grant an extension of the interdict against the processing of the interdicted claims pursuant to its powers to grant a just and equitable remedy, and under what circumstances, are laid out in numerous cases.[25]

[32] In Sibiya, an order was sought to extend the time period within which the respondents were required by this Court to report on steps taken to ensure that death sentences imposed before 1995 were set aside and replaced with appropriate sentences.  This Court held that applications for extensions of time “must be granted if that course is considered by this Court to be in the interests of justice”.[26]  It further held that the interests of justice were triggered predominantly by the need for the information by the Court in supervising the larger project of commuting death sentences after Makwanyane.[27]

[33] In Ex Parte Minister of Social Development, an application for the extension of the suspension of a declaration of invalidity was lodged on the eve of the date of expiry of the period of suspension without a satisfactory explanation for why it was not brought earlier.  This Court held:

“This judgment must not be understood as suggesting that even if the applicants had approached the Court timeously, the extension would have been refused.  In [Zondi 2], the applicant approached the Court 15 days before the expiry of the period of suspension, but the Court was nevertheless prepared to extend the period to allow the matter to be argued later.  In this case, the applicants approached the Court very late and left the Court with no time to consider extending the period of suspension before its expiry.  In all the circumstances of this case, the lateness in approaching the Court, viewed against the lack of any explanation for the delay, the application must be dismissed.”[28]

[34] In Zondi 2, this Court reiterated the principle that it has wide discretionary powers to extend an order varying a period of suspension of a declaration of invalidity, but that this power should be exercised very sparingly.[29]  The Court provided a number of factors that may be relevant in exercising this power:

“[T]he sufficiency of the explanation for failure to comply with the original period of suspension; the potentiality of prejudice being sustained if the period of suspension were extended or not extended; the prospects of complying with the deadline; the need to bring litigation to finality; and the need to promote the constitutional project and prevent chaos.  What is involved is the balancing of all relevant factors bearing in mind that the ultimate goal is to make an order that is ‘just and equitable’.”[30]

[35] The Court reiterated the warning in Ntuli against the variation of an order of invalidity that may have the effect of “reviving” an Act that was previously impugned.^[31]  This Court criticised the explanation for the delay, as the “dates [in explaining the delay] were . . . either not specified or only specified in vague terms such as ‘during early August’ or ‘by the end of July’.”^[32]  The Court held:

“Reasons that justify or at least explain failure to meet the time limits in the court order, must be set out fully, candidly, timeously and in a manner that conforms with the Rules of the Court.  Those responsible for drafting remedial legislation should not assume that as a matter of course and in the public interest an extension of the time period will be granted.  If a proper case for extension is not made out in an appropriate way, then the drafters of the new legislation must be aware that they run the risk of the request for an extension of the period of suspension being refused.”^[33]

However, the Court in that instance noted that on the balancing of various factors, the public would suffer prejudice if the order for suspension were not extended, and accordingly granted the extension.[34]

[36] In Teddy Bear Clinic, the Acting Speaker of the National Assembly applied for an extension of a previous order[35] in which sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act[36] were declared inconsistent with the Constitution and invalid.  The declaration of invalidity was suspended.  The application for extension occurred before the lapse of the period of suspension.[37]  The respondents did not oppose the application and acknowledged the efforts by Parliament to finalise the process.  The delay was, however, necessitated by another requisite amendment to the relevant Act that was to be considered and rectified simultaneously.  Before granting the extension, this Court stated unequivocally that when Parliament fails to correct the defects during the period of suspension, an application requesting an extension must be made before the suspension period expires.[38]  The Court held that the following factors have to be considered before an application for an extension is granted in terms of section 172(1)(b) of the Constitution—

(a) the sufficiency of the explanation for failing to correct the defect within the period of suspension;

(b) the prejudice likely to be suffered if the suspension is not extended;

(c) the prospects of correcting the defect within the extended period; and

(d) the need to promote a functional and orderly state administration for the benefit of the general public.[39]

In the present case, Parliament must show that the order it seeks would be just and equitable in light of these factors.

 

Assessment

[37] Given that Parliament’s application here is analogous to an application for an extension of a suspension of a declaration of invalidity, the factors and considerations outlined in the cases above must be considered in the assessment of this application.  Parliament approached this Court three days after the expiry of the 24-month period.  Parliament knew in March 2018 that it would not be able to meet the 24-month deadline and finalise the process for the enactment of a new Amendment Act.  Yet it only brought an application after the 24-month period had expired.  This application was not made promptly.  However, this is not the only fault in Parliament’s actions.

[38] Upon application of the Teddy Bear Clinic factors, it is evident that there are no exceptional circumstances justifying the order sought by Parliament.  First, there has been an inordinate delay by Parliament in enacting a new Amendment Act, and the periods of delay have largely been unaccounted for, both in explanation on the papers and during oral argument.  Where explanations have been offered, they have been insufficient.  Overall, Parliament took no action for almost 11 of the 24 months provided by this Court.  When Parliament did act, the process was very slow.  The tardiness of Parliament is unacceptable.  Given that a lot of emphasis is placed on facilitating public participation as the reason for more time being needed, it is useful to note that such participation only truly commenced 18 months after LAMOSA 1 was handed down.  The explanation for the delay is wholly insufficient.

[39] The second factor that has to be taken into account is whether the process for the enactment of a new Amendment Act will be finalised by 29 March 2019.  In this regard, the LAMOSA respondents filed further documents reflecting the processing of the draft Amendment Bill as at 23 October 2018.[40]  These documents show that nothing has been done in relation to the draft Amendment Bill since 5 September 2018, when the Portfolio Committee adopted an amended version of the Bill.  By 23 October 2018, the draft Amendment Bill had still not been considered by Parliament, and during oral argument, it was conceded by Parliament that as at the date of the hearing,[41] this was still the case.  Further, no explanation has been provided about Parliament’s proposed ability to meet the deadline considering that it closed for recess in December and re-convened only in February 2019.  This means that Parliament would have had a month from February 2019 to finalise the process at the National Assembly and for the NCOP to consider the draft Amendment Bill and enact it.  There is no indication that Parliament will treat the draft amendment Bill with any urgency.  It has failed to provide a clearly stipulated timetable.  It is evident that the prospects of enacting a new Amendment Act within the proposed timeframe, if the extension is granted, are unlikely.[42]

[40] Further, in LAMOSA 1, the challenge related to the NCOP’s processes, where there was inadequate public participation.  The new Amendment Bill is yet to be referred to the NCOP to engage in public participation processes at that level.  As highlighted in LAMOSA 1, it would be more prejudicial to the public to have this process rushed than it would be not to grant the extension.  Rather, if the extension is not granted, the public, especially those parties who have submitted interdicted claims, will not be without remedy.[43]  In any event, and as stated above, nothing will prevent Parliament from enacting the legislation if the extension is not granted.

[41] Finally, based on the principles in Sibiya and section 172(1)(b) of the Constitution, it would not be in the interests of justice to grant an extension.  That order would not be just and equitable under the circumstances.  The application for an extension must accordingly fail.  However, this Court is still tasked with providing a just and equitable remedy in respect of the interdicted claims.  It is thus necessary to consider the counter-application and a remedy in respect of the interdicted claims.

 

Counter-application

[42] In LAMOSA 1, this Court issued an order in which it reserved the power to make an appropriate further order regarding the processing of new claims in the event that Parliament failed to enact legislation by 28 July 2018.  Any interested party was also afforded the opportunity to approach this Court for such an order.  The wide remedial powers of this Court, as elucidated by section 172(1)(b), allow it to grant any order that is just and equitable.  In LAMOSA 1, this Court said:

“It seems to me that a just and equitable remedy is to interdict the settlement, and referral to the Land Claims Court, of all new claims, whether competing with the old or not.  Our wide remedial power under section 172(1)(b) of the Constitution permits us to do so.  Even though the new claims have been kept alive, the reality is that the Restitution Act under which they were lodged has been found to be invalid.”[44]

[43] This Court has held that its orders must be interpreted in context and in terms of the judgment as a whole.[45]  Thus paragraph 7 of the Order must be interpreted against the backdrop of LAMOSA 1 and the context in which the claims were interdicted.  The reasons for freezing the interdicted claims submitted under the repealed Amendment Act were articulated in LAMOSA 1.  It is apposite at this stage to set out what this Court said:

“In the circumstances, it seems unjust to invalidate the claims that have been lodged already.  Section 172(1)(b)(i) of the Constitution gives this Court a discretion to make a just and equitable order, including an order limiting the retrospective effect of the declaration of invalidity.  I consider it to be just and equitable that the order of invalidity should take effect from the date of judgment.  That will leave new applications already lodged when judgment is handed down intact.  If the Court were to declare the Amendment Act invalid without limiting the retrospective effect of the declaration, the lodged new applications would cease to exist.  The new applicants’ right to restitution would be extinguished with the Amendment Act because the right to restitution in section 25(7) only exists ‘to the extent provided by an Act of Parliament’.

The applicants are asking for a suspension of the declaration of invalidity for 18 months, with accompanying prayers for: a mandamus that the Commissioner continues to settle or refer to the Land Claims Court all land restitution claims filed by 31 December 1998, notwithstanding that a claim has been lodged under the amended Restitution Act in respect of the same land; the grant of permission to the Commissioner to continue accepting new applications under the amended Restitution Act; and an interdict that claims lodged under the amended Restitution Act not be investigated or processed in any manner.

I am loath to grant the suspension prayed for.  That is so because it will have the effect of heaping more new applications on the Commissioner when there are difficulties regarding how to handle those that have been lodged already.  The prospective declaration of invalidity I propose means no new applications will continue being filed after judgment, which would have been the case if we were to suspend the declaration of invalidity.  In a manner of speaking, all affected parties get something.  First, no further new applications can be lodged, thus diminishing the number of claims filed under the impugned Act.  This ameliorates the situation that troubles the applicants.  Second, new applications that have already been lodged are not invalidated.”[46]  (Footnotes omitted.)

[44] The remedial powers exercised in LAMOSA 1 kept the interdicted claims alive, despite the repealed Amendment Act that they were founded on being declared invalid, on the basis that it was just and equitable to do so.  Given this, the question of whether it is within this Court’s powers to make any order now regarding the interdicted claims poses no realistic hurdle.  The only consideration that needs to be taken into account is what is just and equitable.  It is also important that any answer must be given against the backdrop as to why the interdicted claims were kept alive and why the suspension in respect of processing the interdicted claims was ordered in the first place.

[45] It is clear that Parliament has not completed its task of enacting a new Amendment Act within the period of time provided in LAMOSA 1.  Accordingly, paragraph 7 of the Order is activated.  It must be noted that paragraph 7 contemplates an “appropriate order on the processing of [interdicted] claims”.  The Commission and other interested parties, including the LAMOSA respondents and the Communities, acquired the right to apply for an order in terms of paragraph 7.  However, the Commissioner, who was, in terms of paragraph 7, obligated to approach this Court, chose to abide the decision of this Court, rather than apply for an order on the processing of the interdicted claims.

[46] Instead, the Commission filed an affidavit providing an update of its progress in processing old claims since LAMOSA 1.  From this report, the need for this Court to craft an appropriate order for the processing of the interdicted claims is clear.  The Commissioner’s affidavit provided the following information:[47]

(a) As at 31 March 2018, there were 5 757 outstanding old claims that had not yet been processed.

(b) 4 601 of these outstanding old claims are at the fourth phase of processing, that is, negotiating a settlement.  In the event that these claims cannot be administratively settled in terms of sections 42D and 42E of the Restitution Act, they will have to be referred to the Land Claims Court in terms of section 14 of the Restitution Act.

(c) Between 1 April 2016 and 31 March 2018, the Commission settled 1 654 rural and urban claims, at a total cost of over R5 billion.

(d) 163 383 interdicted claims have been received, but these claims have not been processed beyond mere acknowledgement.

[47] Unfortunately, the Commission did not provide insight into the peculiarities and challenges that it encounters in its work.  Nor did it indicate how those should inform this Court’s decision on the processing of the interdicted claims.  However, given the information provided by the Commission, it is imperative for this Court to provide an appropriate remedy in relation to the processing of the interdicted claims.

[48] On the other hand, the counter-application by the LAMOSA respondents has been launched precisely for that purpose.  The relief sought can be categorised in three parts, namely: (1) the main relief; (2) the constitutional challenge to section 6(1)(g); and (3) alternative relief.  The first issue to consider is, in light of the relief proposed by the LAMOSA respondents, what would an appropriate order look like?

 

Main relief and alternative relief

[49] Regarding the main relief sought, the LAMOSA respondents seek an order to the following effect—

(a) that the interdict against processing the interdicted claims continues until either: (1) all old claims are settled or referred to the Land Claims Court; or (2) an interested party approaches the Land Claims Court, Supreme Court of Appeal or this Court to grant permission to begin processing interdicted claim(s);

(b) that interdicted claimants (those who hold interdicted claims) may only be admitted as interested parties before the Land Claims Court in respect of proceedings involving old claims to the extent that their participation contributes to the rejection or establishment of the old claim, or to any other issue that the presiding judge allows to be addressed in the interests of justice;

(c) that notwithstanding the provisions of section 11(5)[48] and 11(5A)[49] of the Restitution Act, no interdicted claimant will be entitled to relief:

(i) altering or varying:

(a) the relief in section 35[50] of the Restitution Act in respect of a finalised old claim;

(b) the terms of an agreement concluded in terms of section 42D[51] of the Restitution Act; or

(c) an award in terms of section 42E(1)(a) or (b)[52] of the Restitution Act,

unless the Land Claims Court, Supreme Court of Appeal or Constitutional Court in exceptional circumstances orders otherwise; or

(ii) awarding them land or a right in land that is subject to a pending claim for restoration by an old claimant;

(d) that the Commissioner must report bi-annually to the Land Claims Court on the progress of processing and finalising old claims and a number of aspects related thereto, including the nature of constraints faced by the Commission in meeting its anticipated completion date; and

(e) that the Land Claims Court may make any order that will expedite processing old claims.

[50] In the alternative, the LAMOSA respondents submit that, in the event that this Court is not inclined to rule finally on the matter of substantive prioritisation between old claims and interdicted claims, it would be appropriate to add a caveat to the relief outlined under (c) above, whereby that relief could be deviated from in the event that Parliament enacts legislation determining otherwise.

[51] The LAMOSA respondents contend that the main relief also gives rise to, and confirms, the interpretation of the Land Claims Court in Amaqamu that old claims must be prioritised and interdicted claims can only be considered to the extent that they assist in the finalisation of old claims.[53]  The Land Claims Court in Amaqamu noted:

“This leaves the question whether new claimants should be ignored in their entirety in the adjudication of old claims.  The parties were ad idem that new claimants who intend to advance claims that, if they could be dealt with by this court, would compete with or overlap land claimed under old claims presently being adjudicated by this court, do have an interest in the outcome of such litigation.  The interests may be tenuous and the potential assertion thereof unclear, but as long as the lodging of the new claims is not invalidated, its existence cannot be denied.  Courts must take cognisance of those whose interests may be affected by its judgments.  In the light of the fact that this court is unable to consider the validity or otherwise of the new claims, the potential participation of new claimants in existing proceedings relating to old claims must of necessity be restricted to the question whether the old claim can be validly contested by a new claimant.  In practice this court will therefore only be able to admit new claimants to participate in the proceedings before it who contest the old claimants’ right to restitution of the land that is the subject matter of the old claim.  New claimants will only be allowed to challenge the right of the old claimants to restitution of all or part of the land concerned.  Essentially such claimant will therefore fulfil the role of an amicus curiae to assist the court in determining the question whether the old claimant has established a case or not.

Should the new claimant recognise the right to restitution of the old claimant while intending to advance a claim over the same land by the enforcement of the new claim, such claimant’s interest may be too tenuous to admit his or her participation in the proceedings.”[54]

This approach, in the circumstances, seems correct.

[52] Parliament does not contend much in response to the counter-application, save to reiterate that the question of prioritising old claims or interdicted claims should be left to Parliament.  The Communities oppose the counter-application.  First, they contend that the relief encroaches on the separation of powers, in that the Court will be legislating on the prioritisation of old claims or interdicted claims.  Second, the Communities contend that the relief proposed by the LAMOSA respondents will severely prejudice them, given that the old claims will not be finalised for approximately 43 years.[55]  The Communities will only have an opportunity to submit new claims when a new Amendment Act is enacted.

[53] The Communities also propose alternative relief in the event that the Court dismisses the application and the counter-application and Parliament does not enact a new Amendment Act by 29 March 2019.  In brief, the Communities ask that this Court lift the interdict and allow the Commissioner to process the interdicted claims concurrently with the old claims.  In the event of a conflict between old claims and interdicted claims, the relevant Regional Claims Commissioner must refer the claim subject to the conflict to the Land Claims Court for it to make a just and equitable decision, as required by sections 33 and 35 of the Restitution Act, on a case-by-case basis.

 

Assessment

[54] With this in mind, the question to be asked is would it be just and equitable for this Court to grant the order sought that has the effect of excluding Parliament on the processing of new claims?  Would it not be more appropriate to defer to Parliament’s powers to enact legislation determining otherwise?

[55] In my view, the main relief sought by the LAMOSA respondents is overly broad and cannot be granted for two reasons.  First, it goes against the purpose and ambit of paragraph 7 of the Order.  The purpose of paragraph 7 was to protect the interdicted claims, in light of the declaration of invalidity of the Act in terms of which they were made, while Parliament enacted a new Amendment Act.  This would provide a procedure for the processing of the interdicted claims and the prioritisation of claims.  The interdict against the Commission allowed Parliament time to enact a new Amendment Act and granted the Commission an opportunity to make strides in processing the old claims.  It is presently unclear when Parliament will enact a new Amendment Act and, for this reason, it would be unfair to perpetuate the interdict against processing the interdicted claims until all old claims have been referred to and finalised by the Land Claims Court.  Although Parliament always retains the right to legislate otherwise, I am of the view that this right must be explicit in any remedy that this Court provides.

[56] The second is that the main relief sought by the LAMOSA respondents would require this Court to dabble in the work of legislating, to an extent that would be beyond the ambit of paragraph 7 of the Order and this Court’s powers, to determine the final procedure of processing old and interdicted claims.  Paragraph 7 limits that exercise to the procedure regarding the interdicted claims.  The LAMOSA respondents want this Court to make a final order to the effect that the interdicted claims must wait until the old claims are processed.  That process may take a long time, which could span into a number of years.  Furthermore, the interdicted claimants cannot be awarded land which is subject to an old claim.  The LAMOSA respondents seek that this position be made final and not subject to further legislative amendment.

[57] This Court has held that its powers under section 172(1)(b) are restrained to the extent that they do not allow this Court to traverse into the terrain of the other arms of government.[56]  Thus the broad extent of the powers under section 172(1)(b) must be balanced with the separation of powers principle.  A just and equitable order under paragraph 7 of the Order must not enter into the realm of legislating.  The order, if granted, will remain intact and will not be changed once Parliament enacts a new Amendment Act.  In ITAC, this Court said:

“Where the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of government, courts may not usurp that power or function by making a decision of their preference.  That would frustrate the balance of power implied in the principle of separation of powers.  The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of government, but rather to ensure that the concerned branches of government exercise their authority within the bounds of the Constitution.  This would especially be so where the decision in issue is policy-laden as well as polycentric.”[57]

[58] In the result, the main relief sought, which does not make provision for any legislative amendment, cannot be granted.  However, the alternative relief proposed by the LAMOSA respondents does have merit.[58]  It solves the problems outlined above.  It also creates a default position for regulating the old claims and interdicted claims and allows the Commission to consider the interdicted claims, albeit to a limited capacity.  This would limit the prejudice outlined by the Communities, as the processing of claims would, in theory, be faster.  If the remedy provides for the prioritisation of claims, this provides a way forward for the processing of claims to go faster than against leaving the interdicted claims frozen.  It also allows for the interdicted claims to be considered to the extent that it assists in the processing of old claims.  Furthermore, the alternative relief proposed traverses a middle ground, in that the Court provides relief pursuant to paragraph 7 of the Order and determines the process regarding the prioritisation of claims, but does not do so without deferring to Parliament’s legislative powers to determine otherwise in the future.  It has the effect of being flexible and equitable, in that it allows Parliament to depart from this position by passing new legislation regarding the prioritisation.

[59] The alternative relief, while lifting the supervisory role of this Court, still makes provision for appropriate judicial oversight by the Land Claims Court, which is tasked with dealing with land claims.  The Commissioner will be required to file reports on a range of aspects, including both constraints and the solutions thereto, and the Land Claims Court will have the necessary expertise to assist where need be.  This will ensure accountability by the Commissioner and the opportunity for the Commission to reflect on its progress in this arduous process.

[60] Accordingly, there is merit in granting the alternative relief.  I would, however, add the caveat that Parliament may at any time enact legislation determining otherwise.  Therefore, it is not necessary to consider the relief proposed by the Communities.

[61] There is one last aspect that must be considered.

 

Constitutionality of section 6(1)(g) of the repealed Amendment Act

[62] In LAMOSA 1, this Court held:

“In the face of the prospective order of invalidity, a question arises as to when and how the preserved new claims that compete with old claims will be considered.  The effect of the prospective nature of the declaration of invalidity is to keep alive the contentious section 6(1)(g) of the Restitution Act insofar as the disposal of the old and preserved new claims is concerned.  In terms of this section the Commission must ‘ensure that priority is given’ to old claims.  This raises all the problems that the applicants are complaining about and brings about uncertainty that may be prejudicial to claimants whose claims were lodged by 31 December 1998.  Because the Amendment Act has been declared invalid in its entirety, I do not find it necessary to grapple with what exactly section 6(1)(g) means merely for purposes of how it should apply to old and preserved new claims.  It seems to me that a just and equitable remedy is to interdict the settlement, and referral to the Land Claims Court, of all new claims, whether competing with the old or not.  Our wide remedial power under section 172(1)(b) of the Constitution permits us to do so.  Even though the new claims have been kept alive, the reality is that the Restitution Act under which they were lodged has been found to be invalid.  The interdict is consonant with this reality.  In the face of the declaration of invalidity, there cannot be much cause for complaint for keeping the new applications in abeyance.  Also, the question how new claims should be dealt with whilst there are outstanding old claims is fraught with imponderables.  It is best left to the legislature to resolve.”[59]  (Footnotes omitted.)

[63] The constitutionality of section 6(1)(g) was deliberately not decided in LAMOSA 1.  The effect of this section was kept alive in order to keep the interdicted claims alive.  However, section 6(1)(g) itself suffered the same fate as the rest of the repealed Amendment Act – it is constitutionally invalid.  The same considerations that applied in LAMOSA 1, including in relation to section 6(1)(g), are still relevant in this application.  Further, given that this Court has now determined the way forward in respect of the interdicted claims, it is not necessary to pronounce any further on this section.  Parliament must deal with this aspect.

 

Costs

[64] The LAMOSA respondents were compelled to approach this Court as a result of the failure of Parliament to enact the required legislation within the prescribed time period and the Commission’s failure to comply with its duty to lodge an application in accordance with paragraph 7 of the Order.  They have achieved limited success and are thus entitled to their costs.  It follows that Parliament must pay the first to sixth respondents’ costs, including the costs of two counsel.

 

Conclusion

[65] The link between land and dignity and the realisation of other constitutional rights, as highlighted in LAMOSA 1, is indicative of the magnitude of the restitution process and what could be achieved.  Any further delays in this process will hinder the realisation of constitutional rights.  We cannot afford to jeopardise the practical and symbolic outcomes of land restitution.  The land reform process, if administered appropriately and expeditiously – and with the guiding lights of our Constitution – can still have the potential to be a catalyst for structural change in our society.[60]

[66] The continued delay in the proper processing of land claims is having a debilitating effect on the land reform project.  An expeditious land restitution process will not only increase the number of claims settled, but could also contribute to a wider, more striking consciousness that centres on the constitutional values of equality and dignity, and give rise to ideals of social justice, identity, the stimulation of economic activity, the promotion of gender equality and a contribution towards the development of rural livelihoods.[61]  This judgment aims to give guidance towards the realisation of those values and ideals.

 

Order

[67] The following order is made:

1. The application by the applicants for an extension is dismissed.

2. The counter-application by the first to sixth respondents is upheld to the following extent, subject to the Parliament of the Republic of South Africa legislating otherwise:

(a) The Commission on Restitution of Land Rights (Commission) is prohibited from processing in any way any claims lodged in terms of section 10 of the Restitution of Land Rights Act 22 of 1994 (Restitution Act) between 1 July 2014 and 28 July 2016 (interdicted claims) until the earlier of the dates when—

(i) it has settled or referred to the Land Claims Court all claims lodged on or before 31 December 1998 (old claims) by way of a referral of the claim in terms of section 14; or

(ii) the Land Claims Court, upon application by any interested party, grants permission to the Commission to begin processing interdicted claims, whether in respect of the whole or part of the Republic of South Africa and whether in respect of part or all of the process for administering an interdicted claim.

(b) Until the date referred to in paragraph (a), no interdicted claim may be adjudicated upon or considered in any manner whatsoever by the Land Claims Court in any proceedings for the restitution of rights in land in respect of old claims, provided that interdicted claimants may be admitted as interested parties before the Land Claims Court solely to the extent that their participation may contribute to the establishment or rejection of the old claims or in respect of any other issue that the presiding judge may allow to be addressed in the interests of justice.

(c) Notwithstanding the provisions of section 11(5) and 11(5A) of the Restitution Act, no interdicted claimant shall be entitled to any relief having the effect of—

(i) altering or varying—

(a) the relief granted to any claimant in terms of section 35 of the Restitution Act in respect of a finalised old claim;

(b) the terms of an agreement concluded in terms of section 42D of the Restitution Act; or

(c) an award in terms of section 42E(1)(a) or (b) of the Restitution Act, unless the Land Claims Court in exceptional circumstances orders otherwise; and / or

(ii) awarding to such interdicted claimant land or a right in land that is subject to a pending claim for restoration by an old claimant.

(d) The Chief Land Claims Commissioner must file a report with the Land Claims Court, to be dealt with as the Judge President of that Court may deem fit, at six-monthly intervals from the date of this order, setting out—

(i) the number of outstanding old claims in each of the regions on the basis of which the Commission’s administration is structured;

(ii) the anticipated date of completion in each region of the processing of the old claims, including short-term targets for the number of old claims to be processed;

(iii) the nature of any constraints, whether budgetary or otherwise, faced by the Commission in meeting its anticipated completion date;

(iv) the solutions that have been implemented or are under consideration for addressing the constraints; and

(v) such further matters as the Land Claims Court may direct;

until all old claims have been processed.

(e) The Land Claims Court may make such order or orders as it deems fit to ensure the expeditious and prioritised processing of old claims.

3. The applicants are jointly and severally ordered to pay the costs of the first to sixth respondents, including the costs of two counsel.

 

For the Applicants: T Motau SC and G Ngcangisa instructed by the State Attorney

For the First to Sixth Respondents: A Dodson SC, M Bishop and M Tsele instructed by Henk Smith and Associates, Legal Resources Centre and Webber Wentzel

For the Seventh to Tenth Respondents: M Dewrance SC and M Musandiwa instructed by Lawyers for Human Rights

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